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Potentially responsible parties and superfund : an analysis of issues

page 370

43 POTENTIALLY RESPONSIBLE PARTIES AND
SUPERFUND-AN ANALYSIS OF ISSUES
Michael D. LaGrega, Associate Professor
Department of Civil Engineering
Bucknell University
Lewisburg, Pennsylvania 17837
Allen E. Ertel, Partner
Reed Smith Shaw and McClay
Williamsport, Pennsylvania 17701
James H. Dougherty, Vice President
Roy F. Weston, Inc.
West Chester, Pennsylvania 19380
INTRODUCTION
The cleanup of abandoned hazardous waste sites under the Comprehensive Environmental
Response Compensation and Liability Act of 1980 (CERCLA) [1] has been the subject of much
controversy over the past several years. Environmentalists and legislators feel that insufficient progress has been made at cleaning up the nations abandoned sites. Superfund was established as a $1.6
billion fund wherein abandoned hazardous waste sites could be cleaned up by the U.S. Environmental
Protection Agency using monies from the fund. The original law was intended that EPA would
recover costs from potentially responsible parties (PRPs), i.e., industries that generated or handled
the waste or owned or operated the site.
The process is initiated by a site being evaluated as severe enough to be placed on a National
Priorities List (NPL). The site then undergoes a two stage engineering study to produce a remedial
investigation/feasibility study (RI/FS) [2]. Based on this information, the Environmental Protection
Agency issues a record of decision (ROD) mandating the exact type of cleanup appropriate to the site.
A contract is then issued through the U.S. Army Corp. of Engineers for design of the selected
alternative and implementation.
Section 106(a) of the Act enables the EPA to undertake enforcement actions against PRPs which
include:
1. Consent orders (a legal document negotiated between EPA and some or all of the PRPs)
2. Administrative orders enforceable through fines of $5,000 per day
3. Seeking an injunction through the district court
4. Litigation including treble damages for the total cost of cleanup
Where PRPs have been identified, EPA attempts to negotiate a consent order wherein a group of
PRPs will take over the site and conduct the cleanup.
The purpose of this paper is to overview problems and issues associated with the Superfund
program as they apply to potentially responsible parties.
BRIEF HISTORY OF SUPERFUND
CERCLA was enacted to clean up abandoned hazardous waste sites and to pay for damages to
natural resources. In enacting this statute, Congress was reacting to public pressure brought on by
incidents such as the Love Canal. Additionally Congress wanted to bring order to what was perceived
as redundant and inadequate federal laws.
CERCLA was passed in the closing hours of the 1980 Congressional Session. Even though the
purpose of the law was clear, the Superfund Bills had been revised and changed extensively during
House and Senate hearings and markup sessions. The final version, however, was a compromise put
together by various Senators. No conference committee reports were filed about this compromise.
370

43 POTENTIALLY RESPONSIBLE PARTIES AND
SUPERFUND-AN ANALYSIS OF ISSUES
Michael D. LaGrega, Associate Professor
Department of Civil Engineering
Bucknell University
Lewisburg, Pennsylvania 17837
Allen E. Ertel, Partner
Reed Smith Shaw and McClay
Williamsport, Pennsylvania 17701
James H. Dougherty, Vice President
Roy F. Weston, Inc.
West Chester, Pennsylvania 19380
INTRODUCTION
The cleanup of abandoned hazardous waste sites under the Comprehensive Environmental
Response Compensation and Liability Act of 1980 (CERCLA) [1] has been the subject of much
controversy over the past several years. Environmentalists and legislators feel that insufficient progress has been made at cleaning up the nations abandoned sites. Superfund was established as a $1.6
billion fund wherein abandoned hazardous waste sites could be cleaned up by the U.S. Environmental
Protection Agency using monies from the fund. The original law was intended that EPA would
recover costs from potentially responsible parties (PRPs), i.e., industries that generated or handled
the waste or owned or operated the site.
The process is initiated by a site being evaluated as severe enough to be placed on a National
Priorities List (NPL). The site then undergoes a two stage engineering study to produce a remedial
investigation/feasibility study (RI/FS) [2]. Based on this information, the Environmental Protection
Agency issues a record of decision (ROD) mandating the exact type of cleanup appropriate to the site.
A contract is then issued through the U.S. Army Corp. of Engineers for design of the selected
alternative and implementation.
Section 106(a) of the Act enables the EPA to undertake enforcement actions against PRPs which
include:
1. Consent orders (a legal document negotiated between EPA and some or all of the PRPs)
2. Administrative orders enforceable through fines of $5,000 per day
3. Seeking an injunction through the district court
4. Litigation including treble damages for the total cost of cleanup
Where PRPs have been identified, EPA attempts to negotiate a consent order wherein a group of
PRPs will take over the site and conduct the cleanup.
The purpose of this paper is to overview problems and issues associated with the Superfund
program as they apply to potentially responsible parties.
BRIEF HISTORY OF SUPERFUND
CERCLA was enacted to clean up abandoned hazardous waste sites and to pay for damages to
natural resources. In enacting this statute, Congress was reacting to public pressure brought on by
incidents such as the Love Canal. Additionally Congress wanted to bring order to what was perceived
as redundant and inadequate federal laws.
CERCLA was passed in the closing hours of the 1980 Congressional Session. Even though the
purpose of the law was clear, the Superfund Bills had been revised and changed extensively during
House and Senate hearings and markup sessions. The final version, however, was a compromise put
together by various Senators. No conference committee reports were filed about this compromise.
370